Section 9 places the non-shifting burden of proving citizenship on the proceedee.

A reference was made by the Superintendent of Police (Border), Nagaon, alleging that the petitioner was a foreigner, resulting in F.T. Case No. 3279/2011 before Foreigners Tribunal No. 1, Nagaon.

The petitioner filed a written statement and adduced evidence through three defence witnesses.

She relied principally on voters’ lists of 1965, 1970, 1975 and 1993, a later voters’ list, and a jamabandi to establish her Indian citizenship and linkage with her parents.

The Tribunal, applying Section 9 of the Foreigners Act, 1946, held that she had failed to discharge the burden of proving that she was not a foreigner and declared her a foreign national who entered India after 25 March 1971, by order dated 25 October 2021.

The petitioner challenged that opinion under Article 226 of the Constitution.

Whether the petitioner had discharged the burden under Section 9 of the Foreigners Act, 1946, of proving that she was not a foreigner and was an Indian citizen.

Whether the Foreigners Tribunal committed any jurisdictional, procedural or legal error warranting interference by the High Court in certiorari jurisdiction under Article 226.

Whether the voters’ lists, oral evidence and jamabandi relied upon by the petitioner sufficiently established her identity and linkage with her projected parents.

Section 9 of the Foreigners Act, 1946 places the burden upon the person concerned to prove that he or she is not a foreigner, notwithstanding anything contained in the Indian Evidence Act.

The Court relied on Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665, which holds that facts such as date and place of birth, parentage and the citizenship of parents are ordinarily within the person’s special knowledge and must be disclosed and proved by the claimant.

It also applied the principle that a writ court exercising certiorari jurisdiction does not act as an appellate court or reappreciate evidence, but may interfere where there is a jurisdictional error, an error apparent on the face of the record, procedural illegality, denial of natural justice or reliance on legally impermissible evidence, as explained in Nur Begum v. Union of India and Central Council for Research in Ayurvedic Sciences v. Bikartan Das.

The Court further relied on Rupajan Begum v. Union of India, (2018) 1 SCC 579, concerning proof of the authenticity of documents and their contents; Momin Ali v. Union of India, regarding the prohibition against variance between pleadings and evidence; and Bijoy Das v. Union of India, 2018 (3) GLT 118, regarding the need for documentary corroboration of oral evidence.

The Court found that the petitioner’s written statement was materially deficient: it did not state her date or year of birth, her mother’s name, details of siblings, or the relevant particulars of her parents and grandparents, despite these matters being especially within her knowledge.

The Court held that facts introduced only during evidence could not cure the deficiencies in the pleadings, particularly where there was variance regarding the petitioner’s mother’s name and the dates of her father’s death.

The documentary evidence was also considered unreliable.

The voters’ lists reflected discrepancies in the names, villages and relationships of the projected parents, while the petitioner’s own name appeared under different names and villages after substantial time gaps.

The jamabandi, although potentially a public document, was introduced through the projected mother and itself described “Rejia” as the daughter of Naser, undermining the claimed parentage.

The Tribunal was also justified in rejecting the evidence of the Gaonburah, who failed to produce proof of his appointment and whose asserted appointment raised serious doubt.

Since the Tribunal’s findings were supported by the record and disclosed no jurisdictional or procedural error, the High Court declined to reweigh the evidence in writ jurisdiction.

The opinion dated 25 October 2021 of Foreigners Tribunal No. 1, Nagaon, declaring her a foreign national post 25 March 1971, was upheld.

The writ petition was dismissed, the interim order was vacated, and consequential action was directed to proceed in accordance with law.